Judge to decide whether to block Wisconsin lame-duck laws that limited powers of top Democrats

Patrick Marley

Milwaukee Journal Sentinel

Dane County Circuit Judge Richard Niess speaks during 2018 court hearing.

MADISON - A Dane County judge will decide soon whether to throw out lame-duck laws limiting the powers of Gov. Tony Evers and Attorney General Josh Kaul.

"I do not intend to sit on it," Circuit Judge Richard Niess told a courtroom after hearing arguments for more than two hours Monday. "You'll get something shortly."

Those comments could mean a ruling within days on the laws that have hampered the powers of two of the state's top Democrats.

Three groups — the League of Women Voters of Wisconsin, Disability Rights Wisconsin and Black Leaders Organizing for Communities — in a January lawsuit argued Republican legislators convened themselves into session improperly and the lame-duck laws should be declared void. An attorney for lawmakers contended Monday the session was valid and the laws should be upheld.

Misha Tseytlin, a lawyer for legislators, argued that striking down the lame-duck laws would pave the way for hundreds of laws passed in a similar method over nearly 40 years to fall. That would result in chaos and allow thousands of prisoners to contend their convictions were invalid, he said.

“This would be a rolling disaster in the state," Tseytlin said.

The judge appeared skeptical.

"So you’re saying if I rule against you, I’m opening the prison doors?" Niess asked.

The lawsuit is one of four legal actions that have been filed over the lame-duck laws. In one, a federal judge in January struck down a part of the lame-duck laws that would have curbed early voting. The other two cases are ongoing.

Those bringing Monday's lawsuit argued lawmakers aren't allowed to hold extraordinary sessions — a decades-old practice legislators use to bring themselves into session when they're not scheduled to be on the floor of the Senate or Assembly. Lawmakers appear to have started the practice in 1980, according to court filings.

There's no reference to extraordinary sessions in state law or the state constitution. The groups contended they're not allowed because the state constitution says the Legislature can meet only at times "provided by law" and when “convened by the governor in a special session."

Tseytlin contended the lame-duck meeting was valid. State law requires legislators to set a schedule at the beginning of their two-year session and they established one in 2017 that allowed them to meet any time using legislative rules for extraordinary sessions, he argued.

The Legislature was effectively in a nonstop meeting for two years, he said. The lame-duck session in December was an extension of a meeting that began in January 2017, he said.

Jeffrey Mandell, an attorney for the groups bringing the lawsuit, said it was ridiculous to argue that lawmakers were continually meeting for two years, as legislators maintain.

He noted state law bars lobbyists from donating to legislators until the end of the regular legislative session. Lawmakers from both parties took those donations last year — at a time when Republican lawmakers now maintain they were still meeting (and would be ineligible to accept donations from lobbyists).

Mandell said a ruling in the groups' favor would strike down the lame-duck laws but not older statutes passed in extraordinary sessions. Those older laws could be challenged in separate litigation, but Mandell questioned whether many of them would be successful.

In the last 39 years, legislators have passed about 300 laws in extraordinary session, according to court filings. Among them are tougher penalties for child sex offenders and public funding for the Fiserv Forum, the new Milwaukee Bucks arena that will host the 2020 Democratic National Convention.

The lawsuit over the lame-duck laws was brought against Evers and the Elections Commission because they are responsible for overseeing parts of the lame-duck laws. While he is technically a defendant, Evers has sided with those bringing the lawsuit and argued the lame-duck laws should be overturned.

Republican lawmakers intervened in the case so they could argue the laws should be upheld.

If Niess rules against lawmakers, Evers would regain more control of the state's economic development agency and his agencies would not have to seek permission from lawmakers to set certain rules or make changes to public benefits programs. He and Kaul would be able to get the state out of a lawsuit they oppose that challenges the Affordable Care Act, widely known as Obamacare.

Such a ruling would allow Evers to make 82 appointments approved during the lame-duck session, including one on the utility-regulating Public Service Commission.

Evers, lawmakers and the state Elections Commission have hired private attorneys at taxpayer expense to represent them in the lawsuits. The attorneys for Evers and the commission are being paid $275 an hour and the attorneys for Republican lawmakers are being paid $500 an hour.

Contact Patrick Marley at patrick.marley@jrn.com. Follow him on Twitter at @patrickdmarley.